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Pina v. Berryhill

United States District Court, D. Arizona

September 21, 2017

Tamar Pina, Plaintiff,
Nancy A. Berryhill[1], Acting Commissioner of Social Security, Defendant.


          Bernardo P. Velasco United States Magistrate Judge

         Plaintiff Tamar Pina has filed the instant action pursuant to 42 U.S.C. § 405(g) seeking review of the final decision of the Commissioner of Social Security. (Doc. 1). The Magistrate Judge has jurisdiction over this matter pursuant to the parties' consent. (Doc. 23). See 28 U.S.C. § 636(c). Pending before the Court are Plaintiff's Opening Brief (Doc. 15), Defendant's Brief (Doc. 19), and Plaintiff's Reply Brief (Doc. 20). For the following reasons, the Court remands this matter for further proceedings.

         I. Procedural History

         On September 6, 2012, Plaintiff protectively filed applications for disability benefits and for supplemental security income, alleging disability as of August 2, 2012 due to “possible bipolar”, dissociative disorder, anxiety, depression, mood swings, headaches, and back aches. (Transcript/Administrative Record (“Tr.”) 24, 289; see also Tr. at 250-63, 275 (“She also states to suffer from depression and anxiety which manifest in headaches, neck and back pain due to overly stressing self out.”); Plaintiff's Brief at 3 (Plaintiff “alleges she is disabled from bipolar disorder, anxiety, headaches, and degenerative disc disease, which causes significant back pain and numbness in her upper extremities.”)) . Plaintiff's date last insured for Title II benefits is December 31, 2012. (See Tr. at 24; Plaintiff's Brief at 2). Plaintiff's applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). (See Plaintiff's Brief at 2). On August 28, 2014, a hearing was held before ALJ George W. Reyes where Plaintiff, who was represented by counsel, and vocational expert (“VE”) Jill Peterson testified. (Tr. at 44-89). On November 4, 2014, the ALJ issued his decision denying Plaintiff's application. (Tr. at 24-36). Thereafter, the Appeals Council denied Plaintiff's request for review (Tr. at 1-6), making the ALJ's decision the Commissioner's final decision for purposes of judicial review. Plaintiff then initiated the instant action.

         II. Plaintiff's Background

         Plaintiff was born in 1979[2] and was 35 years of age on her alleged disability onset date. (Tr. at 84, 250); see also Tr. at 254, 274)). Plaintiff has obtained a GED. (Tr. at 48). Plaintiff also completed a vocational college certification program in medical billing and coding, where she earned straight A's, but did not obtain certification because she “failed the testing.” (Id.). She did not attempt the test again because she felt “[d]iscouraged. I felt like I couldn't do it after failing the first time.” (Id.).

         Plaintiff's past work includes working on a production/assembly line and shipping and handling in a factory, customer service at call centers, and as a caregiver. (Tr. at 310; Plaintiff's Brief at 3; see also Tr. at 49 (the factory work involved wiping off the lids of pots and pans “and putting them into packages.”)). Plaintiff quit working at the factory “because of just stress and all of the back pain.” (Tr. at 49-50). With regard to work at the call centers, Plaintiff “would make it through the training, because it's within a classroom, but then once I get out on the floor they're really on you about do this, do this, do this, and I'd be under so much stress and I'd have so much anxiety and so much stomach problems that I'd end up quitting.” (Tr. at 68). Plaintiff's work as a caregiver to the elderly primarily involved taking them shopping or to doctors' appointments, and doing some cleaning, on days when she was having a good day. (Tr. at 50). Plaintiff stopped working as a caregiver when two of the people she was helping passed away, and “the last one I just-I was so depressed all the time that I kind of stopped helping her.” (Id.). Plaintiff also worked for two days as a stocker at Target, but “couldn't do it . . . so much stress and from lifting and bending and moving . . . and then with anxiety causing a lot of the tension and I would get the headache. . . .” (Tr. at 69).

         Plaintiff testified that she experiences panic attacks a few times a week, which cause her to “clam[] up, I get real panicky, the sweaty palms, I can't breathe, racing thoughts, heart palpitations.” (Tr. at 59). Plaintiff also experiences mood swings where one day she might feel “normal like I can get through the day, and then I would go into like a hyperactivity mode for about two days, and then I would hit a low of depression and I would feel depressed for a couple of days. I wouldn't feel like showering, I wouldn't feel like eating and just no energy, no nothing, and I would cry a lot. And then I would end up coming back up to like another roller coaster road.” (Tr. at 66). Plaintiff has experienced mood swings most of her life.” (Id.; see also Tr. 67 (on “high energy” days Plaintiff becomes “so overwhelmed I don't know what to do with the energy, and I'll maybe start something and then I can't finish it[.]… And then I end up upset over it because I start a project I can't finish.”); see also Tr. at 318 (describing mood swings)).

         Plaintiff testified that she experiences “a lot of muscle spasms in [her] right shoulder which causes a lot of tension and headaches.” (Tr. at 53). According to Plaintiff, “[a]nxiety causes headache, neck ache [and] shoulder pain.” (Tr. at 318). She experiences anxiety “in all social settings.” (Id.). The headaches involve pain radiating “from the top of [Plaintiff's] neck to the front of [her] head. Other times, [she] has right temple throbbing that radiates to [her] right eye.” (Tr. at 350). The headaches last “anywhere from a couple hours to a couple of days.” (Id.). When Plaintiff is experiencing a headache, she must stop what she is doing and go to a cool, dark room to lie down and close her eyes. (Tr. at 351). In regard to pain, Plaintiff generally has 10 bad days per month, 15 moderate days, and 5 good days. (Tr. at 362). On bad days, “[e]very movement adds to the increase of headache to neck, back pain and especially stress[, ]” and her “racing thoughts flare everything by adding to the tension and stress.” (Id.). Even on moderate days, “too much thinking or movements add to the headaches and neck [and] back pain [sic] stress.” (Tr. at 363). On good days, if she does too much, she “get[s] tension headaches around head, with neck, shoulder [and] back pain radiates and can't find relief.” (Id.).

         Plaintiff testified that she can walk one block, or five minutes, before needing to stop and rest for about one to two minutes. (Tr. at 53-54). She can stand for about 10 minutes at a time and she can sit for about 20 minutes. (Tr. at 54). Plaintiff is left-handed and can lift about 10 pounds with that arm. (Id.). She can lift and carry only five pounds with her right arm. (Tr. at 55). Plaintiff does not like to drive long distances because she “get[s] a lot of anxiety and fear and racing thoughts.” (Tr. at 56). She usually only drives to the grocery store or Walmart. (Id.).

         Plaintiff has two children, who were aged sixteen and eight on the date of the hearing, and she lives with her mother who was 71 years of age on the hearing date. (Tr. at 57, 58, 74). When Plaintiff was asked at the hearing why she lives with her mother, she responded that doing so makes her “feel at ease....[S]he kind of takes care of me.... She's my support system, and I just - I need her. I just - she helps me with the kids.” (Tr. at 67). Plaintiff's mother helps with housework and cooking and reminds Plaintiff to take a shower and to eat when Plaintiff is depressed, which happens “[a] couple days a week.” (Id.; Tr. at 77). Plaintiff's mother helps Plaintiff and Plaintiff also helps her mother by driving her to doctors' appointments and other errands and the two go shopping together about once a week. (Tr. at 58, 74, 77) . When the ALJ asked Plaintiff about her statement in the record that she felt one of her strengths was taking care of her children and mother, Plaintiff responded: “That's what I mainly do. I feel like I take care of my mom as far as being there for her as a friend, a companionship, and when she needs somebody to take her to the doctor, because she won't drive.” (Tr. 74). Plaintiff also testified that she did not help her mother bathe, get dressed, or change bedding. (Tr. at 76). Nor has Plaintiff had to lift her mother out of bed. (Tr. at 77). The two remind each other to take medication. (Id.).

         III. The ALJ's Decision

         A. Claim Evaluation

         Whether a claimant is disabled is determined pursuant to a five-step sequential process. See 20 C.F.R. §§ 404.1520, 416.920. To establish disability, the claimant must show that: (1) she has not performed substantial gainful activity since the alleged disability onset date (“Step One”); (2) she has a severe impairment(s) (“Step Two”); and (3) her impairment(s) meets or equals the listed impairment(s) (“Step Three”). “If the claimant satisfies these three steps, then the claimant is disabled and entitled to benefits. If the claimant has a severe impairment that does not meet or equal the severity of one of the ailments listed…, the ALJ then proceeds to step four, which requires the ALJ to determine the claimant's residual functioning capacity (RFC)[3]….After developing the RFC, the ALJ must determine whether the claimant can perform past relevant work…. If not, then at step five, the government has the burden of showing that the claimant could perform other work existing in significant numbers in the national economy given the claimant's RFC, age, education, and work experience.” Dominguez, 808 F.3d at 405.

         B. The ALJ's Findings in Pertinent Part

         The ALJ determined that Plaintiff “has the following severe impairments: affective disorder, anxiety disorder, headaches, and degenerative disc disease[.]” (Tr. 26). The ALJ found that Plaintiff had the RFC

to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the claimant should never use ladders, ropes, or scaffolds. Mentally, she is limited to unskilled work that is not performed in a fast-paced production environment (the two examples used are the pace of work in a McDonald's restaurant at noontime or the pace of work in the famous I Love Lucy episode with the chocolates on the conveyor belt whizzing by Ethel and Lucy). Moreover, she is limited to only occasional interaction with coworkers/supervisors and further limited to only brief intermittent, superficial public contact. She is precluded from work in crowds (the example used is that of Costco employees who work in a crowd). The claimant can attend and concentrate in two hour blocks of time throughout an eight-hour workday with the two customary 10-15 minute breaks and the customary 30-60 minute lunch period.

(Tr. 29). Based upon the vocational expert's testimony at the hearing, the ALJ determined that Plaintiff was unable to perform her “past relevant work in production, assembly line; shipping and receiving; and caregiving.” (Tr. at 29). The ALJ relied on the vocational expert's testimony to further determine that Plaintiff would be able to perform other work such as: mail sorter or housekeeper. (Tr. at 35). Therefore, the ALJ found that Plaintiff was not disabled under the Social Security Act from August 2, 2012 through the date of the ALJ's decision. (Tr. at 36).

         IV. Discussion

         Plaintiff argues that the ALJ erred by: (1) failing to consider substantial evidence of hand pain and weakness; (2) failing to give appropriate weight to the opinion of Plaintiff's treating physician, Dr. Thili Kulatilake; (3) failing to consider all of Plaintiff's impairments in posing hypothetical questions to the VE; (4) improperly imposing his own medical opinion; and (5) failing to fully consider Plaintiff's statements and testimony about the limiting effects of her impairments. A fair reading of Plaintiff's argument supports the conclusion that she does not contest the ALJ's analysis of the medical evidence regarding her mental impairments and she did not object when Defendant made this assertion. (See Defendant's Brief at 7; Plaintiff's Reply) According to Defendant the ALJ's opinion should be affirmed because it is free from error and based upon substantial evidence. Defendant also argues that even if the ALJ's decision was erroneous, any such error was harmless.

         A. Standard

         The court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. §405(g). The factual findings of the Commissioner shall be conclusive so long as they are based upon substantial evidence and there is no legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). The “court may set aside the Commissioner's denial of disability insurance benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted).

         Substantial evidence is “‘more than a mere scintilla[, ] but not necessarily a preponderance.'” Tommasetti, 533 F.3d at 1038 (quoting Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003)); see also Tackett, 180 F.3d at 1098. Further, substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Where “the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Tackett, 180 F.3d at 1098 (citing Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)). Moreover, the Commissioner, not the court, is charged with the duty to weigh the evidence, resolve material conflicts in the evidence and determine the case accordingly. Matney, 981 F.2d at 1019. However, “the Commissioner's decision ‘cannot be affirmed simply by isolating a specific quantum of supporting evidence.'” Tackett, 180 F.3d at 1098 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir.1998)). Rather, the court must consider the record as a whole, weighing both evidence that supports and evidence that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a specific quantum of supporting evidence. Id.; Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). The court shall “review only the reasons provided by the ALJ in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 1010.

         B. Hand Pain and Weakness

         Plaintiff argues that the ALJ “failed to address her tingling, numbness, and radiating pain into her arms and hands.” (Plaintiff's Brief at 13). She contends that this failure resulted in error at Step Two because the ALJ did not identify hand pain and weakness as a severe impairment, and that the error was compounded “during the crafting of the RFC statement.” (Reply at 4-5).

         The ALJ acknowledged Plaintiff's testimony “that for the past fifteen years, she has not been able to lift/carry more than 10 pounds with her dominant left arm, without hurting herself. She also claimed that for the past fifteen years, she could not lift more than five pounds with her left[4] arm.” (Tr. at 30). The ALJ did not include specific discussion of whether Plaintiff was impaired with regard to her arms and hands when he determined Plaintiff's severe impairments, although he did identify degenerative disc disease as a severe impairment. The ALJ ultimately determined that Plaintiff could perform a limited range of light work, which involves “lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to ten pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b). He assessed no limitations on Plaintiff's ability to handle, grasp or use her fingers.

         Step Two “is ‘a de minimis screening device [used] to dispose of groundless claims.'” Webb v. Barnhart, 433 F.3d 683, (9th Cir. 2009) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (1996)). Under Step Two, “the applicable regulations state that ‘[a]n impairment or combination of impairments is not severe if it does not significantly limit [a claimant's] physical or mental ability to do basic work activities.'” Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001) (quoting 20 C.F.R. § 404.1521(a)). Basic work activities are defined as including such capabilities as lifting, carrying or handling. 20 C.F.R. §§ 404.1521(b)(1), 416.921(b)(1) (effective until March 27, 2017).[5] In the Ninth Circuit, “[a]n impairment or combination of impairments may be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.” Webb, 433 F.3d at 686 (internal quotation marks, citation, and emphasis omitted). Plaintiff bears the burden of establishing that her impairments are “severe” under Step Two. Edlund, 253 F.3d at 1159-60.

         Moreover, Step Two “is not meant to identify the impairments that should be taken into account when determining the RFC. In fact, ‘[i]n assessing RFC, the adjudicator must consider the limitations and restrictions imposed by all of an individual's impairments, even those that are not ‘severe.'” Buck v. Berryhill, __ F.3d __, 2017 WL 3862450, *5 (9th Cir. Sept. 5, 2017) (quoting Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184 at *5 (July 2, 1996)). Thus, “[t]he RFC … should be exactly the same regardless of whether certain impairments are considered ‘severe' or not.” Id.; see also Carmickle v. Comm'r of Soc. Sec. Admin,533 F.3d 1155, 1165 (9th Cir. 2008) (“Even though a non-severe “impairment[ ] standing alone ...

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